State v. Kadin , 316 Or. App. 100 ( 2021 )

100
Argued and submitted October 28, affirmed December 1, 2021, petition for
review denied April 7, 2022 (369 Or 507)
STATE OF OREGON,
Plaintiff-Respondent,
v.
ERIK DANIEL KADIN,
Defendant-Appellant.
Klamath County Circuit Court
16CR66026; A173155
501 P3d 1144
Andrea M. Janney, Judge.
Zachary J. Stern argued the cause for appellant. Also
on the opening brief was Ferder Casebeer French & Stern,
LLP. Also on the reply brief was Ferder Casebeer French &
Thompson, LLP.
Carson L. Whitehead, Assistant Attorney General, argued
the cause for respondent. Also on the brief were Ellen F.
Rosenblum, Attorney General, and Benjamin Gutman,
Solicitor General.
Before Lagesen, Presiding Judge, and James, Judge, and
Kamins, Judge.
PER CURIAM
Affirmed.
Cite as 316 Or App 100 (2021) 101
PER CURIAM
Defendant appeals a judgment of conviction for four
sex offenses, raising five assignments of error. We affirm.
In the first, second, and fourth assignments of
error, defendant asserts that the trial court plainly erred by
not, on its own initiative, striking testimony that, in defen-
dant’s view, constituted impermissible vouching testimony.
For reasons similar to those articulated in State v. Corkill,
262 Or App 543, 325 P3d 796, rev den, 355 Or 751 (2014),
we reject defendant’s contention that the trial court plainly
erred. Although defendant, in his reply brief, asserts that
we should overrule Corkill, we are not convinced that the
standards for overruling our precedent are met.
In the third assignment of error, defendant asserts
that “[t]he trial court erred by allowing a nurse practitioner
to testify on matters outside the scope of her expertise.” As
we explain, to the extent this assignment of error is pre-
served, we decline to review it because defendant invited
any error.
The testimony at issue came in through the CARES
nurse who examined the victim. In explaining that the
absence of physical injury does not foreclose the possibility
of sexual abuse, she testified that, among other things:
“[P]eople who engage in this type of behavior with children,
they want to keep access to those children. And causing a
lot of pain and a lot of damage and a lot of trauma doesn’t
keep that access available to them. And so they don’t use
a lot of force, they use gentle pressure and gentle touching
that doesn’t necessarily hurt or leave evidence.”
Defendant did not object. Later, however, when the witness
again began to describe qualities of “people who engage
in this behavior,” defendant did object, asserting that the
witness was not “qualified as an expert” to testify about
the reasons that sex offenders act the way that they do.
Outside the presence of the jury, the trial court held a hear-
ing concerning the witness’s credentials and determined
that the witness was not qualified to give that type of tes-
timony. It then explored with the parties what to do next,
102 State v. Kadin
eventually asking defense counsel to clarify what remedy he
was seeking:
“THE COURT: So I want, I guess I’m asking again,
[defense counsel], to clarify. Are you asking me to go back
and strike, then, that particular answer to a question?
“[Defense Counsel]: I’m asking you to instruct the jury
that that is beyond the field of her expertise.”
After hearing from the prosecutor, who contested
the propriety of striking testimony that was not objected to
at the time, the court offered to “give an instruction to the
jury that this witness is qualified as an expert to testify
to the medical/physical findings and not to a psychological
motive behind any alleged offender.” Both parties agreed to
that course of action, with defense counsel stating “[t]hat’s
fine.” When the jury returned, the court recognized the
witness as an expert “as it relates to child physical exam-
inations and pediatric sex abuse,” and instructed the jury
that “she is not an expert to testify as to the psychology or
mental state or motive behind alleged offensive behavior or
offenders.”
To the extent defendant argues on appeal that the
trial court erred by not striking the challenged testimony
as beyond the witness’s expertise before any objection was
raised, the claimed error is not preserved and is not plain.
It would not have been obvious that it was beyond the scope
of the witness’s expertise until the court held the hearing
outside the presence of the jury after defendant finally did
object. To the extent defendant argues that the court erred
at that point by not taking corrective measures other than
the one it did, such as striking the prior testimony, defen-
dant invited any error by not telling the court, in response
to its question about the need to strike the prior testimony,
that it should be stricken, then agreeing to the court’s plan
to give the instruction that the court offered to deliver. State
v. Saunders, 294 Or App 102, 105, 429 P3d 1049 (2018),
rev den, 364 Or 294 (2019) (“The [invited error] rule applies
when a party has invited the trial court to rule in a cer-
tain way under circumstances suggesting the party will be
bound by the ruling or at least will not later seek a reversal
on the basis of that ruling.”). For those reasons, we conclude
Cite as 316 Or App 100 (2021) 103
that defendant is not entitled to relief on his third assign-
ment of error.
In his fifth assignment of error, defendant chal-
lenges the trial court’s instruction to the jury that it could
convict by a less-than-unanimous verdict. Although the
trial court’s instruction was erroneous, the jury’s verdicts
were unanimous so the error does not entitle defendant to
reversal. State v. Flores Ramos, 367 Or 292, 478 P3d 515
(2020).
Affirmed.